These key-point
summaries cannot reflect every fact or point of law contained within a source
document. For the full text, follow the link to the cited source.

Effect of Van
Wersch and McCormick

After the U.S. Court of
Appeals, Federal Circuit's decisions in Van Wersch v. Department of
Health & Human Services, 100 FMSR 7005, 197 F.3d 1144 (Fed. Cir.
1999) and McCormick v. Department of the Air Force,102 LRP 24759,
307 F.3d 1339 (Fed. Cir. 2002), even though an employee is serving a
probationary or trial period, he may still be entitled to full
pre-termination procedural and post-termination appeal rights if he has
the requisite type and amount of prior service. MSPB Report:
Navigating the Probationary Period After Van Wersch and McCormick,
January 2007.

An appellant fits within the
definition of "employee" in 5 USC 7511(a)(1)(C)(ii) if she has
completed two years of current continuous service in the same or similar
positions in an executive agency under other than a temporary appointment
limited to two years or less. Van Wersch v. Department of Health &
Human Services, 100 FMSR 7005, 197 F.3d 1144 (Fed. Cir. 1999).

An appellant who was serving a
probationary period at the time she was terminated is an "employee"
with appeal rights if she has completed more than one year of current
continuous service under other than a temporary appointment limited to one
year or less. McCormick v. Department of the Air Force,102 LRP 24759,
307 F.3d 1339 (Fed. Cir. 2002).

In response to the MSPB's
opinion that 5 CFR 752.401(c)(1), (c)(2) and (d)(11) conflict with Van
Wersch and McCormick, or could be found in the future to
conflict with the language of 5 USC 7511(a)(1), OPM amended its
regulations at 5 CFR Part 752 to prevent any misunderstanding by agencies
or employees that might be affected by those regulations. OPM revised Sections
752.401(c)(1) and (2), (d)(11) and (12), and added a new Subsection (d)(13)
to address the procedural and appeal rights of individuals serving a
probationary period in the competitive service or a trial period in the
excepted service. OPM also revised 5 CFR 315.803, 315.804(a) and 315.805
to make corresponding changes to the career and career-conditional
employment rules governing probationary periods. The amendments became effective
March 10, 2008. Federal
Register notice of final rules (02/07/08).

The Federal Circuit's decisions
in Van Wersch and McCormick could effectively preclude the
use of "job tryouts" for some applicants based solely on their
prior experience. That is, even though an agency may intend that all
applicants, if hired, be required to serve a probationary or trial period,
some applicants will be subject to no period, or an abbreviated period, in
which an agency can evaluate their performance and fitness for the job
before those applicants acquire procedural and appeal rights under 5 USC Chapter
75. MSPB
Report: Navigating the Probationary Period After Van Wersch and McCormick,
January 2007.

When an agency wants to hire an
applicant who would have appeal rights shortly after appointment, it must
balance the desirability of hiring that applicant based on the assessments
already made against the risk that the agency, if it later decided to
terminate the applicant, would have to provide the procedural and appeal
rights set forth in 5 USC Chapter 75. An agency could consider asking the
individual to sign an agreement that would constitute a knowing and
voluntary waiver of his rights to appeal under 5 USC 7511(a)(1)(A)(ii) or
5 USC 7511(a)(1)(C)(ii). However, there is a risk that the waiver will be
found unenforceable. MSPB
Report: Navigating the Probationary Period After Van Wersch and McCormick,
January 2007.

For example, the executive
order establishing the FCIP and OPM's implementing regulations do not
explicitly refer to a probationary or trial period for career interns. In
the excepted service, there is no statutory requirement that there be a
probationary or trial period for appointments. Based on the executive
order and OPM's regulations, it is unclear whether the appointment period
under a program such as the FCIP is a "probationary or trial period"
within the meaning of 5 USC 7511(a)(1)(C)(i). Executive Order No. 13,162,
3 CFR Part 283 (2001); 5 CFR 213.3202(o); MSPB Report:
Navigating the Probationary Period After Van Wersch and McCormick,
January 2007.

However, in a 1992 Federal
Register notice implementing the Civil Service Due Process Amendments
of 1990, OPM stated that nonpreference eligible employees in excepted
service appointments pending conversion to the competitive service, such
as at that time the Presidential Management Intern Program, the Student
Work-Study Program, and Veterans Readjustment Appointments, have no
procedural or appeal rights. OPM noted that these appointments provide
noncompetitive conversion eligibility if the employee has demonstrated
satisfactory performance or training, and that these requirements
constitute the probationary or trial period referred to in 5 USC
7511(a)(1)(C)(i). 57 Fed. Reg. 20041 (May 11, 1992); MSPB Report:
Navigating the Probationary Period After Van Wersch and McCormick,
January 2007.

Agencies should consider
stating in their internal policies that the period prior to such a
conversion is a probationary or trial period. Since OPM's regulations do
not specify that, for nonpreference eligible employees in excepted service
appointments pending conversion to the competitive service, the period of
service prior to any such conversion constitutes the probationary or trial
period under 5 USC 7511(a)(1)(C)(i). MSPB Report:
Navigating the Probationary Period After Van Wersch and McCormick,
January 2007.